1 Some Challenges in the Reintegration of Ex- 2 Offendersfor Appointment as Directors in 3 Botswana 4 5 6 7 8 109 11 . 12 ABSTRACT 13 The aim of this paper is to interrogate key legal perspectives of reintegration of ex- offenders into society with specific reference to their appointment as directors of private enterprises in Botswana. The paper contends that re-integration of ex- offenders is a continuation of their rehabilitation that should start during their incarceration. The paper argues that the Companies Act Chapter 42:01, the principal statutory law governing private enterprises in Botswana, generally fetters the rehabilitation and reintegration of offenders by placing unlimited discretion on the courts in the determination of whether ex-offenders should become directors of companies. Such wide and unrestrained powers of the courts may violate the right of ex-offenders to employment and managing their businesses. The paper adopts a qualitative research design with interpretivist paradigm because of the critical and hermeneutical approach when one is interpreting and analyzing diverse legal instruments. The International Covenant on Civil and Political Rights is considered so as appropriately locate the current discourse. With a view to assessing the magnitude of the treatment of ex-offenders in the private sector for director positions, the paper examines the law on the qualifications for appointment as a director in selected public sector boards. The finding is that whereas the Companies Act Chapter 42:01 leaves the fate of an ex-offender in the hands of the judiciary, that is not the case in the appointment of directors in State-Owned Enterprises (SOEs) that are established by legislation. The paper therefore recommends legal reform for the Companies Act Chapter 42:01 to adopt an approach that clearly re- integrates ex-offenders without any court process. For a proper appreciation of the approach found in the Companies Act Chapter 42:01, the paper examines South Africa’s Companies Act 71 of 2008. The paper finds that there is need for legal reform in Botswana so that the fate of ex-offenders regarding managing their own companies and serving in other companies is not left to the courts without any statutory safeguards. 14 15 Keywords: Ex-Offenders; Rehabilitation; Re-integration; Human Rights; Legislation; 16 Recidivism 17 18 19 20 1. INTRODUCTION 21 22 Upon release from prison, ex-offenders or persons who were found guilty by a court, 23 come across many challenges in their effort to be integrated back into society 24 [1].This paper examines one of the main legal challenges faced by ex-offenders who 25 intend to occupy fiduciary positions in Botswana’s commercial sector. The legal 26 challenges are not only found in a developing country like Botswana. Rehabilitation 27 of ex-offenders which includes their reintegration is a process that goes beyond 28 measures put in place by prison authorities during the confinement of an individual 29 for wrong doing [1]. In addition, it is important to view the subject of reintegration of 30 the ex-offender from a human rights perspective. When reintegration of an offender 31 is anchored on human rights as argued in this paper, the right of the public to their 32 own safety is not threated but may in fact be reduced [2]. The human rights 33 approach for reintegration of offenders. The Quaker Council for European Affairs 34 has observed that reintegrating ex-offenders into society shows respect of the 35 human rights and dignity of the ex-offender [3]. 36 37 This paper submits that there is need for a comprehensive legal and policy 38 awakening on reintegration of offenders in Botswana by not unreasonably restricting 39 the ex-offenders from appointment as fiduciaries of State and private enterprises. 40 The State has the obligation of embracing the reintegration of ex-offenders [4]. The 41 initiative for reintegration of the ex-offender by the State is a human right of the ex- 42 offender and the State has an obligation to put in place legislative and policy reform 43 for the re-integration of the ex-offenders into society. By so doing, the State would 44 be mitigating the possibility of recidivism [5]. Any legal barrier for the re-integration 45 of ex-offenders into society is a continuation of punitive rationale of imprisonment, a 46 perspective that is losing currency [5]. 47 48 This paper focuses on the rationale of the reintegration of ex-offenders with specific 49 focus on the legal framework in Botswana in relation to qualification for appointment 50 as a director. The paper argues that past offences of an ex-offender should not 51 unreasonably impede such an individual from occupying or be appointed as a 52 director by placing such a right at the whims of the judiciary. The argument becomes 53 more compelling when one considers that an ex-offender may have skills that are 54 not easily available in a developing economy like Botswana, a shortage that has 55 been described as a ‘scourge’ [6] only for a court to prevent him or her from 56 becoming a director of a company. 57 58 The Companies Act Chapter 42:01 is the legislation that more than any other drives 59 the private sector which includes listed and non-listed companies. In this 60 connection, the paper finds that the Companies Act Chapter 42:01 vests the 61 reintegration of the ex-offender in the hands of the court thereby giving the courts 62 without stating what the courts should take into account in determining whether the 63 ex-offender should be appointed as a director. The weaknesses of such a legal 64 position become clear by a brief examination of South Africa’s Companies Act 71 of 65 2008. For the purpose of this paper and in particular the Companies Act 42:01, ex- 66 offenders include a person who has been removed from an office of trust because of 67 misconduct. The reason is that such persons require to be reintegrated into society 68 in the same way a person found guilty of an offence requires reintegration. In 69 demonstrating the shortcomings of the Companies Act Chapter 42:01 in connection 70 with its position regarding ex-offenders, the paper makes reference to the 71 disqualification for appointment to the board or management committee of a public 72 entity. It is ironical that in the management of public entities, the State does not 73 leave to the courts the reintegration of the offenders. Legislation is clear on the post- 74 conviction duration to be taken into account before the ex-offender is appointed as a 75 director. 76 77 2. METHODOLOGY 78 79 The paper adopts a qualitative research design. Qualitative design is anchored on 80 ‘inductive theorizing’ which because of the arguments and debates involved can 81 fashion a new direction of a particular discourse [7]. Under the wider qualitative or 82 research design, the paper adopts an interpretivism paradigm. Interpretivism has 83 been expressed.as ‘post-positivism’ paradigm [8]. Interpretivism is a suitable 84 paradigm for the legal-socio enquiry in the paper because it encompasses critical 85 theory and hermeneutics which is ‘the art of interpretation’ [9]. Hermeneutics 86 approach shall enable the interpretation of the selected legal instruments in 87 Botswana with more emphasis on the Companies Act, Chapter 42:01. To appreciate 88 the approach of the treatment accorded to ex-offenders by Companies Act Chapter 89 42:01, seven SOEs governing state enterprises are purposively selectedout of about 90 twenty-five SOEs. This represents about twenty-eight percent (28%) of the SOEs in 91 Botswana. The selection is based on the significance and role of the seven SOEs to 92 the State and the economy as a whole. The aim is to compare the perspective on 93 ex-offenders as regards appointment to the boards of such entities. In the textual 94 analysis of the Companies Act Chapter 42:01, a comparative perspective of the 95 position in South Africa is made. 96 97 By embracing an external methodology in which the subject of rehabilitation of ex- 98 offenders is seen beyond Botswana, the approach contributes directly to the 99 globalization and internalization of legal research and practice [10], a position that is 100 different, and a shift, from the traditional method of legal internal or inward-looking 101 analysis to legal research [11]. The inward-looking approach essentially dwells on 102 textual analysis of legal material. Much as the approach is central to legal research, 103 it cannot be a vehicle for a pragmatic approach to legal research in particular its 104 internalization. The need for a different approach to interpretation of legal text 105 becomes more compelling in a multi-disciplinary enquiry as in this paper, that 106 encompasses legislative law and literature on sociological concepts of rehabilitation 107 and recidivism. 108 109 3. RESULTS 110 111 112 3.1 Reintegration of Ex-Offenders: An Overview 113 114 The punishment or retribution of the offender has for a long time been the anchor of 115 the criminal justice system [5]. Retribution is based on the right of the public to be 116 protected from offenders when the justice system punishes the offender [12]. 117 However, rehabilitation of the offender in the course of serving sentence and post- 118 release is now a principal consideration in many countries [5]. Indeed, the 119 international position is that‘the penitentiary system shall comprise treatment of 120 prisoners the essential aim of which shall be their reformation and social 121 rehabilitation’ [13]. Comment [P1]: There is plagiarism. 122 123 The case for the rehabilitation of ex-offenders is that it contributes significantly to the 124 re-integration of the ex-offender into society and is also part of protection of the 125 community [12]. One possible consequence of failure to take appropriate strategies 126 for the re-integration of the ex-offender is that it mitigates against recidivism, the 127 going back to criminal conduct by the ex-offender [12]. Recidivism is a threat to the 128 safety of the community and it increases the costs of dealing with the new offences. 129 [14]. In addition, the existence of appropriate measures for reintegration of ex- 130 offenders is that reintegration plays a significant role in reducing discrimination and 131 ostracism of the ex-offenders and therefore upholding the human right of the ex- 132 offender. 133 134 In an attempt to reintegrate ex-offenders into society, some countries like South 135 Africa have passed appropriate legislation to respond to that need which, as seen 136 above, is a human right. South Africa has enacted the Correctional Services Act 111 137 of 1998. One of the main aims of that Act as contained in the preamble of the Act is 138 the establishment of a system of community correction of the offender. Under 139 section 41(1), the Department of Correctional Services “must provide or give access 140 to as full a range of programmes and activities as is practicable to meet the 141 educational and training needs of sentenced prisoners.” It is instructive to note that 142 in South Africa, the term ‘correctional services’ is used in reference to the institution 143 that is in charge of offenders serving custodial sentences. 144 145 The Botswana Prisons Service states in its mission statement that it ‘will provide 146 safe custodial care and correction to offenders through effective rehabilitation and 147 reintegration programmes for the protection of society” [15]. With such a clear 148 statement, one would expect that the same spirit of the State for the rehabilitation 149 and reintegration of the offender into society would not be unreasonably and 150 irrationally curtailed by the same State by way of legislation. Focusing on the safe 151 custody and security of the offender has not produced the desired result and was 152 not a deterrent to recidivism [5]. It is in this spirit that the treatment of ex-offenders 153 for appointment as directors of State enterprises is examined. 154 155 3.2. Ex-Offenders Appointment to Boards of State-Owned Enterprises 156 157 This part of the paper examines the treatment of ex-offenders in the appointment. 158 From the outset, it should be stated that ex-offenders are treated with some dignity 159 in the appointment of directors of State-Owned Enterprises (SOEs). The purposively 160 sampled SOEs under consideration are those established by legislation. Their 161 selection is based on their relatively significant role they play in the economy. These 162 are about twenty-five entities [16]. In Botswana, there are some SOEs that are 163 established under the Companies Act Chapter 42:01. Such SOEs are companies 164 limited by guarantee established under Part II of the Act. For this reason, the 165 treatment of ex-offenders for appointment as directors for those entities falls under 166 the next part of the paper that examines the qualifications for appointment of 167 directors for entities incorporated under the Companies Act Chapter 42:01. 168 169 The SOEs established by legislation that are considered in this section of the paper 170 with the aim of determining the ease and extent of the SOEs implied reintegration of 171 offenders are Botswana Power Corporation (BPC); Water Utilities Corporation 172 (WUC); Botswana Unified Revenue Service (BURS); Botswana Tourism 173 Organization (BTO); Botswana National Productivity Centre (BNPC); Companies 174 and Intellectual Property Authority (CIPA) and the Non-Bank Financial Institutions 175 Authority (NBFIRA). The Act of Parliament that establishes each of these SOEs also 176 states the objectives of the entity. Most importantly, the legislation provides for 177 qualifications for the appointment of members of the management board. 178 179 BPC is established by Botswana Power Corporation Act Chapter 74:01. Section 4(3) 180 of the Act provides for disqualification from appointment as a member of the 181 corporation. The members of the corporation are its governing body and are 182 appointed by the Minister under section 4(3). Section 4(3) provides for 183 disqualification of a person from appointment as a member of BPC. The section 184 does not provide for disqualification on the basis of previous convictions or 185 sentences. The only section relevant to offenders is section 5(f) which provides that 186 a member of the corporation may be removed from office if a member is sentenced 187 to imprisonment without the option of a fine or is convicted of an offence involving 188 dishonesty. The WUC is established by the WUC Act Chapter 74:02. As regards 189 offenders, the WUC Act adopts the same position as the BPC Act which is not 190 necessary to replicate here. It is therefore evident that these two key SOEs in 191 Botswana have unambiguously vested the appointing authority with the power and 192 discretion to appoint an ex-offender to the governing body. 193 194 The BURS is the nation’s ‘tax man’. The entity is formed by the BURS Act Chapter 195 53:03. Regarding the appointment of ex-offenders to its governing board established 196 under section 6, section 10(b) of the Act states that a person is disqualified from 197 appointment to the board if within ten (10) years preceding the date of appointment, 198 the person has not been convicted of a criminal offence in any country with a 199 penalty of a minimum of six (6) months imprisonment without the option of a fine. 200 Therefore, the BURS Act does not give a blanket prohibition against the 201 appointment of an ex-offender to the board of directors. In addition, and most 202 importantly, if the ex-offender’ was given the option of a fine within the period 203 mentioned, then he or she is not barred from becoming a member of the board. 204 205 This position in the BURS Act is similar to the appointment of the membership 206 committee of the BTO under section 8(b) of the Botswana Tourism Organization Act 207 Chapter 42:09. That Act establishes the BTO. The same approach is adopted by 208 section 12(b) of the Companies and Intellectual Property Authority Act Chapter 209 42:13, the Act that creates CIPA. Section 8(2)(b) of the Non-Bank Financial 210 Institutions Authority Act is on similar terms. The Act establishes NBFIRA. Section 211 4(5) of the Botswana National Productivity Centre Act Chapter 47:05 prohibits a 212 person who has been convicted of any offence involving dishonesty or fraud from 213 being appointed a member of the BNPC board of directors. It is interesting to note 214 that the other ex-offenders whatever the offence, may be appointed to the board. It 215 is evident from the analysis of the sampled SOEs that to a certain extent, they do 216 not holistically prohibit the appointment of ex-offenders to the board of directors or 217 committee of members. Most importantly, none of the Acts discussed above leaves 218 the decision on the appointment of a director to the courts. The Acts are clear on the 219 post-conviction duration for an individual to be appointed as a director. It is in this 220 context that the Companies Act Chapter 42:01 is interrogated. 221 222 3.3. Ex-Offenders and the Appointment of Directors under the Companies Act 223 224 Qualification for appointment as a director of a company formed under the 225 Companies Act Chapter 42:01 (‘the Act’) is found in section 146 of the Act. Every 226 person or persons who intend to form an entity that is separate from its owners or 227 members can only do so under this Act. The State can also form an entity under this 228 Act as an alternative to a separate legislation that would establish the entity as 229 discussed in part four above. In so far as section 146 of the Act is concerned, what 230 is relevant to this paper is section 146(2)(c)-(e). 231 232 Under section 146(2)(c), a person is disqualified from being appointed or holding 233 office as a director of a company if the person is prohibited by sections 500 and 501 234 of the Act. Section 500 states that a person convicted of certain offences cannot be 235 appointed to manage a company within five years of the conviction or judgment 236 without the leave of the court. Offences include those committed during the 237 promotion, formation of a company, insider trading and other offences covered in 238 other sections for instance stock market manipulation. Section 501 is not relevant to 239 the thesis of this paper because it covers situations in which a court may disqualify 240 an existing director from continuing to hold the office or position of director. 241 242 243 Section 146(2)(d) provides that a person convicted of theft, fraud forgery and acts of 244 dishonesty for which the person was imprisoned without the option of a fine or a fine 245 exceeding Botswana Pula Five Thousand (P5,000) is disqualified from appointment 246 for the office or position of a director without the leave of court. Section 146(2)(e) 247 states that a person removed by a competent court from an office of trust on 248 account of misconduct is disqualified from appointment as a director only with the 249 leave of the court. What is clear from the perspective of restrictions for the 250 appointment of ex-offenders as directors under the Act is that the Act leaves their 251 fate to judges to determine whether they qualify for appointment as directors. As 252 argued above, this position is diametrically different from that adopted by specific 253 laws that establish SOEs. 254 255 The approach of the Companies Act Chapter 42:01 to vest the courts with discretion 256 to determine whether an ex-offender can be appointed as a director can be 257 contrasted with the position in neighboring South Africa. In that country, restrictions 258 against the appointment of ex-offenders is not left to the discretion of the courts, a 259 perspective or principle that is similar to that adopted by laws that establish SOEs in 260 Botswana. It is therefore trite to examine the Companies Act 71 of 2008 because it 261 is a statute that is in pari materia with Companies Act 42:01 of Botswana. 262 263 Section 68(8) of the Companies Act 71 of 2008 gives the court power to disqualify 264 an individual from appointment as a director for various reasons. Disqualified 265 persons include those that have been convicted of theft, perjury, fraud, 266 misrepresentation and dishonesty among other offences and have been imprisoned 267 without the option of a fine. The fundamental difference between the two Acts is 268 found in sections 69(9)(a) and 69(12) of the South African law. Section 69(9)(a) 269 subjects the power of the court to disqualify an ex-offender from being appointed as 270 a director by laying down clear timelines for the disqualification. That section states 271 that the disqualification of ex-offenders expires after five years of the sentence 272 imposed for the relevant offence or as may be extended by the court on application 273 of the Companies and Intellectual property Commission. 274 275 Section 69(12) has an approach on disqualification of ex-offenders from director 276 positions that is not found in the Botswana legislation. That section provides that 277 despite the disqualification of an individual from becoming a director, the individual 278 will nevertheless become a director of a private company in which he or she holds 279 all the shares, or the shares are held by the disqualified person and a person related 280 to that person provided the relative has consented to the appointment of the 281 disqualified person as a director. That is a huge departure from the Botswana 282 legislation. The Botswana Act provides for grounds for disqualification from 283 appointment of ex-offenders irrespective of the type of company. It is instructive to 284 note that many SOEs in South Africa are established under the Companies Act 71 285 of 2008. An example is South African Airways Ltd. [17]. In this regard, the 286 appointment of directors of such entities is made according to that legislation which 287 does not unreasonably deny ex-offenders the right of reintegration. 288 289 The distinction in the two laws is that whereas any ex-offender may incorporate and 290 manage his or her own company in South Africa without any restrictions, the same 291 is not the case in Botswana for reasons advanced earlier. It is possible for a court in 292 Botswana to deny the ex-offender leave or permission to become a director whether 293 the shares are exclusively held by the ex-offender or with someone else. This 294 approach is inconsistent with Pillar 2 of Vision 2036 of Botswana [18]. That Pillar 295 provides for tolerance, inclusivity and opportunities for all by 2036. 296 297 4. DISCUSSION 298 299 The paper has found that reintegration of ex-offenders is a human right recognized 300 under international law. An analysis of laws establishing SOEs in Botswana has 301 established that ex-offenders are given specific time frames post-conviction, albeit 302 lengthy, for them to qualify for appointment as members of the board of directors or 303 management committees of SOEs. More encouraging are the laws in some SOEs 304 that do not restrict the appointment of ex-offenders into the board. Clear ‘cooling 305 off’periods for ex-offenders creates an unambiguous criterion for them to join SOEs 306 boards. Consequently, this approach contributes to the reintegrated of ex-offenders 307 into society and therefore to the enjoyment of their human rights. However, the 308 Companies Act Chapter 42:01 relegates the reintegration of the ex-offender to the 309 discretion of the court. Referring the appointment of ex-offenders to the board of 310 directors exclusively to the courts makes the process unpredictable, arbitrary and 311 vague because it gives the courts absolute discretion. In South Africa, the law is 312 certain on the post-conviction waiting period for an offender to qualify for 313 appointment as a director. 314 315 316 5. CONCLUSIONS AND RECOMMENDATIONS 317 318 319 For ex-offenders in Botswana to enjoy the human right of reintegration into society 320 by making it possible for them to be meaningfully considered for appointment as 321 directors of SOEs and private companies, reforming the relevant law is imperative. 322 Firstly, statutes governing SOEs that provide for the lengthyten-year post-conviction 323 period for the ex-offender to qualify for appointment to the board of directors should 324 be amended to reduce this period. 325 326 The South African experience of five years post-conviction period is more 327 appropriate and a better recognition of the need for not unreasonably restricting the 328 enjoyment of the right of reintegration of ex-offenders. Secondly, there is urgent 329 need for reforming the Companies Act Chapter 42:01. 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